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Adam Carlyle of Bridekirk v Carlyle of Limekilns. [1699] 4 Brn 429 (6 January 1699)
URL: http://www.bailii.org/scot/cases/ScotCS/1699/Brn040429-0851.html Cite as:
[1699] 4 Brn 429
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Adam Carlyle of Bridekirk v. Carlyle of Limekilns
Date: 6 January 1699
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Halcraig reported Adam Carlyle of Bridekirk against Carlyle of Limekilns, being a reduction of a decreet-arbitral pronounced in 1682, by which he was most enormly lesed; the controversy being anent some bygone feu and non-entry duties, which Limekilns owed to Bridekirk, his superior, for which they decerned him not only to give up some debts and bonds Bridekirk's father owed him, but also to thirle his lands to his mill.
Answered,—There was no iniquity, 1mo. Because he not only got a discharge of the bygone casualties of the superiority, but was also to get his entry and charter; and as to these debts, Bridekirk not representing the granter of the bonds, he could never be made liable. 2do. They can never quarrel this decreet-arbitral, because homologated by charging me with horning to implement; and so he cannot both approbare et reprobare.
Replied,—You having declined to implement your part of the said decreet, I must be free, and may now reduce it. 2do. Performance upon your part is become both imprestable and impossible, because of incumbrances upon your estate by adjudication and otherwise. 3tio. It would be now liable for these debts discharged, on the 24th Act of Parliament 1695, for obviating the fraud of apparent heirs.
The Lords thought he having made use of the decreet by charging on it, he can neither repudiate nor reduce it; but, if the other had also reclaimed, then, mutuo consensu, they might recede from it, seeing unumquodque eodem modo tollitur quo colligatur; but that it was now turned factum imprœstabile was not a reason of reducing it on iniquity, but a ground to annul it, unless the creditors-adjudgers from him would concur and offer to implement their debtor's part, by receiving him vassal, and giving him a charter; which probably they would do, to get the benefit of the astriction, by sustaining and fulfilling the decreet-arbitral.
